New Jersey Department of Environmental Protection to begin accepting applications this summer for waivers of environmental compliance.

The New Jersey Department of Environmental Protection (NJDEP) adopted a new rule on March 8 that provides a process for NJDEP to waive compliance with regulatory requirements. Waivers of compliance are granted at NJDEP's discretion, following a demonstration by a party seeking the waiver, and consistent with NJDEP's core mission to maintain, protect, and enhance New Jersey's natural resources and to protect public health, safety and welfare, and the environment. NJDEP will begin accepting applications for waivers on August 1, 2012.

A party seeking to obtain a waiver of compliance with one of the state's environmental regulatory requirements must submit an application to NJDEP demonstrating that strict compliance with one of NJDEP's regulations should be waived based on at least one of the following four reasons: (1) a conflict among rules adopted by NJDEP or between an NJDEP rule and a rule of another state or federal agency makes compliance with both rules impossible or impracticable, (2) strict compliance with the rule would be unduly burdensome, (3) the waiver would result in a net environmental benefit that substantially outweighs any detriment that would result from the waiver, or (4) a declared public emergency.

The waiver request, NJDEP's determination to consider a waiver, and NJDEP's decision on each waiver are subject to public notice. The Waiver Rule also lists 13 categories of rules and requirements that may not be waived under the new rule, including any requirement imposed by a state statute or federal law, unless the statute or federal law provides for a waiver. If NJDEP grants a waiver request, the waiver is limited to the particular rule, project, and applicant that sought the waiver and does not apply to other projects, activities, or locations. Also, NJDEP may impose conditions on the waiver, including monitoring and reporting environmental impacts and implementing environmental offsets to ensure that the waiver results in a net environmental benefit.

NJDEP is developing processes for handling waiver requests, including application forms, electronic systems for receiving and tracking waiver requests, and online reports to provide the public with information on applications for waivers and NJDEP's decisions. These forms and systems are expected to be in place before August 1.

The new rule provides NJDEP with additional flexibility in implementing environmental programs. The new rule also provides regulated parties and NJDEP with a means to address inconsistent regulatory requirements in a transparent manner without sacrificing environmental protection. Parties should begin considering whether they may be able to obtain relief under the Waiver Rule from inconsistent or unduly burdensome regulatory requirements.